In these days of Congressional bi-partisan gridlock, there is a surprising movement afoot, supported by both Democrats and Republicans, to “ban the box” or prohibit employers from asking questions about criminal backgrounds on employment applications.
The Democratic Governor of my state, Virginia, (using a page from the Obama playbook) signed an executive order last week addressing this issue. Governor McAuliffe directed that all Virginia state agencies remove from employment applications any questions pertaining to arrests or convictions of the applicant. His order does not affect private companies, as a bill requiring private companies to ban questions on criminal backgrounds could not pass the Virginia State Legislature.
Republican Governor of New Jersey Chris Christie signed a similar measure last August, banning private companies from asking about criminal records until after the employment interview process.
Over 15 States and 100 cities and counties, according to NELP (National Employment Law Project) have passed similar laws. Many large retailers, such as Target, Walmart, Home Depot and Bed and Bath & Beyond, voluntarily, often nudged by law suits, have publically stated they will not ask about incarceration during initial interviews.
Proponents argue that too often men and women released from prison cannot find jobs due to the stigma attached to having been incarcerated. Consequently, or so the argument goes, the recidivism rate remains high as ex-criminals return to crime to feed their families.
The removal of the “box” does not mean an employer is forced to hire someone who has a criminal history. The laws, and executive orders, generally allow for criminal history questions to be asked after the initial interview and the hiring entity has made a conditional job offer.
The theory is that if a qualified candidate gets past the interview, then the employer would be more likely to hire him or her despite any convictions on their records.
Ban the box laws do not prohibit a criminal background investigation after the preliminary job offer has been made. The laws also do not prohibit final employment being contingent upon successfully passing a criminal background check.
There are, of course, some exceptions to the “ban the box” rules for police and others.
The main argument against ban the box concerns the potential legal ramifications. Employers contend that the real risk in removing any questions on former criminal convictions from applications is discrimination law suits. The fear is based on recent guidance published by the Equal Employment Opportunity Commission that indicates that if you refuse to hire someone with a criminal background, you may be held in violation of Title VII of the 1964 Civil Rights Act.
Some of the thought behind the ban the box movement makes sense. If someone was convicted of marijuana use 20 years ago, but has no other convictions on his or her record, then it may be appropriate not to reveal any criminal convictions at the preliminary employment stages. With “the box” on the application, people with one-time convictions would likely never get an interview, as they would be forced to check the box. They may have excellent qualifications and could be a great fit with the company.
For me, this is more of a “wait and see” kind of issue. My libertarian instincts dislike the interference of the government telling me what I can and can’t do when hiring employees. On the other hand, the whole idea of incarceration and release is rehabilitation and giving someone a fair chance.
Disclaimer: The content of this article is the opinion of the writer and does not necessarily reflect the policies or opinions of US Patriot Tactical.
As Vice President of a Security Fusion Center, Bill has provided risk management advice and direction to major Fortune 100 defense industry, ultra high net worth and other clients.
As Global Director for Security, Alem International, Bill planned and directed all facets of the security and risk mitigation strategies for the 2004 Olympic Torch Relay that took place in over 34 countries.
Bill was commissioned as an Explosive Ordnance Disposal (EOD) Officer in the US Army immediately after college.
Mr. Gaskill has a Bachelor of Science degree in Ancient History with a math minor from the University of Wisconsin-Madison.He has a current Top Secret/SCI clearance.He has professional fluency ratings in Spanish, Greek, Hebrew and French, and has a working knowledge of Russian.